delivered the opinion of the Court.
In seeking a reversal of the judgment appellants urge that the Circuit Court admitted improper evidence, refused proper -evidence, refused proper instructions asked by them, gave improper instructions for the plaintiff, refused to submit to the jury proper questions of fact for their special finding, that the verdict is against the evidence, and that the court should have entered a judgment in their favor on the special findings, made by the jury.
The entire contest was upon the issue raised by the special pleas. Appellants denied that appellee ever was the owner of the property, and claimed that the note given to him by the Arndts, the judgment confessed thereon and the proceedings had thereunder, by which the Arndts were divested of title to the goods, were a fraudulent scheme and conspiracy to hinder and delay creditors. Prior to the time appellee received the note on which the judgment was confessed he had seen but little of Sam Arndt and no business of any character had ever been transacted between them. He came to Bock Island in response to an application to aid Arndt in his financial embarrassment. Arndt owed him nothing, but the consideration for the note for $5,392, as alleged, was two notes executed by Arndt and his wife to appellee’s father, and a sight draft on appellee’s bank for $1,500. The draft was executed and delivered to Arndt’s wife for the purpose of taking up the two notes of $750 each made to the Rock Island Rational Bank, on the 7th of January, 1892. It was never used for that purpose; it was not presented to appellee’s bank nor to appellee for payment; it was retained by Arndt’s wife until after the Rock Island Bank had obtained judgment and sold the store on execution, then it was surrendered to appellee and marked by him as “ paid.” It was claimed upon the trial, that it was taken up by the Arndts in the store. A careful perusal of the evidence leaves no doubt upon our minds that it was the purpose of Arndt in executing the note to appellee and putting on foot the proceedings to divest himself of the title to the goods, to defraud and hinder the Rock Island Bank and other creditors. There are several suspicious circumstances tending to show that the appellee understood Arndt’s purpose and that he lent his aid to his' scheme. While he claims that he was acting in good faith for the sole purpose of securing the debt to his father, it looks very much to us that he had the further purpose of putting his brother in-law in such a position that he could continue in the clothing business, without being annoyed by collection proceedings of creditors. The good faith of appellee was a question falling peculiarly within the province of the jury, however, and we should hesitate to disturb their finding if the record was entirely free from error.
Sam Arndt was introduced as a witness by the appellee to show the good faith of the transactions by which judgment was recovered against him, the goods levied upon and title to them secured to appellee. On cross-examination it was sought to bring out certain conversations had by him with one Wereberger, in which he admitted that he owed appellee nothing, and that the judgment was confessed and the other proceedings had for the purpose of defrauding the bank, but the court refused to allow such proof. This was error. If for no other purpose, the examination and proof were proper as affecting the credit of Arndt as a witness.
Among the many and very lengthy instructions given to the jury was one (the tenth for the plaintiff) in which they were told that although they might find suspicious circumstances surrounding the transaction of Arndt and Oltmann, “ yet the jury can not presume them to be fraudulent if the acts, under the evidence, can be reconciled with a theory or presumption of honesty and honest intent.” This proposition is stated more strongly then the law warrants in a civil cause. Under it the jury could sustain the transaction, although a preponderance of the evidence showed that it was fraudulent. Ho matter how strong the suspicious circumstances surrounding the transaction of the acts under the evidence can be reconciled with a theory of honesty (a proper test in a criminal case), then the jury should find the transaction to have been performed in good faith. The giving of this instruction was error, and one, in view of the facts, sufficient to reverse the judgment. The plaintiff’s seventh instruction was argumentative and misleading.
We see no error of the court in admitting evidence. Several of the refused instructions could have been given, but we think the case was all covered by instructions that were given. There was no error committed in refusing to submit to the jury certain questions of fact for special finding. They were but evidentiary and "were properly refused. C., R. I. & P. R. R. Co. v. Clough, 33 Ill. App. 130. The special findings of the jury were not sufficient to authorize a judgment for appellants.
For the two errors already held by us as committed, the judgment should be reversed and the cause remanded.